The Role of Litigation in End of Life Care: A Reappraisal‪.‬

We live in a society permeated by litigation. That this is so hardly needs mention; there are reminders all around us. It sometimes seems, however, that we have lost sight of the limits of litigation as an instrument of change--both social change and individual change. Lessons abound of litigation that has not brought about the anticipated benefits--school desegregation and police misconduct in interrogations, to mention only two long-standing historical examples. Yet when a new problem arises clamoring for resolution, we frequently ignore the past lessons. Perhaps litigation is addictive. We know that it will not solve all of our problems, but despite our intellectual understanding, our will is overborne. The problems posed by end of life decision-making are but one more example. Since 1975, people wishing to forgo life-sustaining medical treatment or their families have relied on the judicial system to solve a problem that undoubtedly has a legal component, but that might have been resolvable outside the courts. In 1975, it was the Quinlan case; today it is the Schiavo case, a contemporary Bleak House, spawning a mini-industry of litigation--endless rounds of essentially the same arguments made in different courts (and sometimes the same courts) through different (and sometimes the same) lawyers.